1. Civil Liberties & Civil Rights Greatest Hits

2. Civil Liberties v. Civil Rights  Civil Liberties/Bill of Rights/1-10 amendments/God Given/Inalienable Rights/Constitutional Rights-Bill of Rights  What do they do?  Civil Rights/11-27  What do they do?  How does America feel?  Civil Liberties? Trade Civil Liberties for Security Unless you have a 2

3. What are Civil Liberties?  Civil Liberties are basic rights and freedoms that are guaranteed by the Constitution (or interpreted to be there by the courts)  Most of our civil liberties originate in the Bill of Rights – although there are others like Habeas Corpus found in the Constitution itself. Civil Liberties protect/shield you from your government

4. What are Civil Liberties? How different than Civil Rights?  Civil Rights are the basic right to be free from unequal treatment based on certain protected characteristics (race, gender, disability) Civil Rights are policies created by the government to protect people from discriminatory treatment

5. Do the Bill of Rights apply to the states?  Originally, the BOR only protected people from the Federal Government  Remember…the BOR was added as a promise that the new, and stronger, federal government wouldn’t be too powerful.  It was assumed that each state had its own bill of rights

6. Barron v. Baltimore (1833)  Barron v. Baltimore (1833)  Baltimore’s street repairs caused silt to fill in Barron’s profitable wharf (the water was too shallow for ships to dock).  Barron sued Baltimore in federal court using the 5 th Amendment – Eminent Domain  Supreme Court ruled that the BOR only applied to the Federal government. In other words, the Constitution gave Barron no protection against the actions of Baltimore, MD (he could still sue in state court, but…)  If your state gave you eminent domain protection, great…but if they didn’t…too bad for you.

7. Barron v. Baltimore (1833) Baltimore Harbor My wharf is very profitable. I’m rich!

8. Barron v. Baltimore Baltimore Harbor I’m going to sue in State civil court. Sorry. Street repairs silted your wharf. I can’t dock at Barron’s wharf anymore!

9. After losing in State Court, Barron sues in Federal Court The 5 th Amendment’s TAKINGS CLAUSE says “nor shall private property be taken for public use, without just compensation.” Baltimore’s street repairs “took” my wharf from me. They should compensate me. The government taking your property for public use is called eminent domain

10. The Marshall Court Rules Barron v. Baltimore The first ten "amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them.” Barron lost. But more importantly, the case set the precedent that the BOR did not apply to the states.

11. 1 st Amend. 2 nd Amend. 4 th Amend. 5 th Amend. 6 th Amend. 8 th Amend. 9 th Amend. BILL of RIGHTSBILL of RIGHTS The Long-Term Effect of Barron v. Baltimore

12. 1 st Amend. 2 nd Amend. 4 th Amend. 5 th Amend. 6 th Amend. 8 th Amend. 9 th Amend. B A R O N v. B A L T I M O R E BILL of RIGHTSBILL of RIGHTS Bill of Rights only protects you from the FEDERAL gov, not STATE govs The Long-Term Effect I’m protected against actions of my state government only if my state wants to protect me (by having a state BOR)

13. “Selective” Incorporation Theory  On a case-by-case (little by little) basis the SCOTUS has nationalized the Bill of Rights  Once an amendment has been incorporated/nationalized, a citizen is protected from both the federal and the state governments  In other words, the states have to follow the Bill of Rights.

14. Bill of Rights and the States  Barron v. Baltimore  1833-Bill of Rights is only For Federal  Slowly each Amendment starts to defy this. Selective Incorporation  Gitlow v. New York  1925- Press and Speech are “Fundamental personal rights and liberties protected by Due Process Clause of the 14 th Amendment DPC- guarantees life, liberty, and property 14

15. 14 th Amendment Due Process and Equal Protection Clauses “… nor shall any state deprive any person of life, liberty, or property without due process of law; nor (shall any state) deny any person within its jurisdiction the equal protection of the law.”

16. Freedom Of Religion  1 st Amendment  Establishment Clause- Engel v. Vitale- recite prayer by N School Children Lemon Test (Lemon v. Kurtzman 1971) Secular Purpose Neither advances or inhibits religion Don’t foster excessive government entanglement Slow Change 1997- Agostini v. Felton- pay teacher for remedial students 2002- Zelman v. Simmons-Harris – Ohio allow school Vouchers 1984 Equal Access Act – Allow religious groups to meet if all groups meet  Should we allow for Vouchers? Creation Science/Darwinism? Nativity Scenes at school?  Jeffersonian Model- Separation of Church and State, How Separate are we? 16

17. Free Exercise Clause  People can believe what they want to believe  Employment Division V. Smith 1988 State Laws about religion are ok as long as they are not pointed at a specific religion 17

18. Freedom of Expression  Fire!!!  Prior Restraint-censorship  Near v. Minnesota- newspaper shut down before printing, Grafters, Jewish Gangsters

19. War/Secrets  Population Favors not letting our secrets out to other countries  Includes formerer, CIA, FBI, etc…  1919 Schenck v. U.S. – clear and present danger  Smith Act of 1940 – advocating overthrow of the government

20. Obscenity  Obscene is not within the Constitutionally protected speech  Roth v. United States Justice Potter Stewart- “Ill know it when I see it”  Miller v. California As whole-to a indecent interest in sex Patently or clearly offensive Lack serious literacy, artistic, political, or science value  Local Standard will dictate –Mostly genitalia- what about anatomy text?  Problems: No national wide definition Regulation aimed at young(Technology) Pornography 20

21. Libel and Slander  New York Times v. Sullivan- Libel only if malice and reckless disregard for the truth  Have to know that they are not true-difficult to win case for public figure  Private citizens just need statement but mostly don’t pursue 21

22. Symbolic Speech  Tinker and Des Moines-black arm bands, can be stopped  Texas V. Johnson- Burning of Flag  Express Opinion without words  Burning a cross is only against the law if it can be proved that it intended to threaten  Defying norms of society does not make it against the law 22

23. Commercial Speech  FTC Federal Trade Commission-ensures product is not misleading and tell the truth  Only real concern is unlawful activity and misleading  Joe Camel, Cartoons, 23

24. Commercial Speech  FCC Federal Communications Commission- regulate communications  Obscene words that can not be said on air when children are present 10:00pm-6:00am What about private channels, XFM Radio, Howard Stern, etc…. 2000 U.S. V Playboy Entertainment- People that want to watch all day, ask the cable company to block then.  Based on the population  Still have to leave time for public service, news, children programs (radio) 24

25. Right to Assemble  Literal Right - to make a statement  Can manage- time, place, manner restrictions  No real limitation, except Abortion, Soldiers Funerals  Right to Association  Common interest Watched online Nazi, KKK, hate groups 25

26. Let’s say Missouri banned ALL guns… would the ban be constitutional?

27. RightRight to Bear ArmsBear Arms  Court of District of Colombia v. Heller 2008  Handgun possession, disassemble in home, bound trigger in home.  Since 2010- Rights with weapons have been free to the states to decide. CCW, Castle Law, etc…. 27

28. New Day  More Incorporation

29. Incorporation Example Gideon v. Wainwright  Gideon was not allowed an attorney after being arrested for a felony  A Florida STATE judge told Gideon that the 6 th Amendment didn’t apply to him because he wasn’t being charged with a FEDERAL crime – therefore the state didn’t have to honor the right to an attorney.

30. Incorporation Example Gideon v. Wainwright  From prison, Gideon petitioned the Supreme Court to use the Due Process Clause to “soak up” the 6 th Amendment and get a new trial – this time with an attorney  He applied for a writ of certiorari (orders the case to go immediately to the SCOTUS “to be made more certain”)

31. Incorporation Example Gideon v. Wainwright (1965) GIDEON v. WAINWRIGHT All people in the US, whether charged in federal or state court, have the right to an attorney (for felony charges) 14th Amendment Sponge w/ Due Process Pores 6 6 6 6 Amend 6

32. 6 th Amendment Incorporation  1932Right to Counsel in Capital CasesPowell v. Alabama  1948Right to a Public TrialIn re Oliver  1963Right to counsel in felony casesGideon v. Wainwright  1965Right to confrontation of witnessesPointer v. Texas  1966Right to an impartial juryParker v. Gladden  1967Right to a speedy trialKlopfer v. NC  1968Right to jury trial for serious crimesDuncan v. LA  1972Counsel for all crimes w/ prisonArgersinger v. Hamlin The 6 th Amendment was incorporated (nationalized) little by little over the course of 40 years.

33. Evolution of Incorporation  Palko (Palka) v. CT (1937)  Palko was charged with 1 st degree murder but was convicted of 2 nd degree and got life  CT appealed the decision. In the new trial, Palko was found guilty of 1 st degree murder and was sentenced to death. CTs constitution didn’t protect its citizens from double jeopardy in this situation  Palko appealed to the SCOTUS saying that his new conviction violated his 5 th Amendment protection against double jeopardy through the 14 th (Due Process)

34. Evolution of Incorporation  The SCOTUS upheld Palko’s 2 nd conviction  Some BOR guarantees are fundamental and “neither liberty nor justice would exist if they were sacrificed”  Some BOR guarantees are valuable and important, but not essential  Palko was executed by electrocution in 1938.  The Palko decision was overturned in 1969 (Benton v. MD)

35. 1 st Amend. 2 nd Amend. 4 th Amend. 5 th Amend. 6 th Amend. 8 th Amend. 9 th Amend. BILL of RIGHTSBILL of RIGHTS The Bill of Rights protects me against the FEDERAL government. Does the Bill of Rights protect me against my STATE government?

36. 1 st Amend. 2 nd Amend. 4 th Amend. 5 th Amend. 6 th Amend. 8 th Amend. 9 th Amend. B A R O N v. B A L T I M O R E BILL of RIGHTSBILL of RIGHTS Bill of Rights only protects you from the FEDERAL gov, not STATE govs NO! So how can I guarantee that I receive the protections in the Bill of Rights?

37. 1 st Amend. 2 nd Amend. 4 th Amend. 5 th Amend. 6 th Amend. 8 th Amend. 9 th Amend. B A R O N v. B A L T I M O R E BILL of RIGHTSBILL of RIGHTS Bill of Rights only protects you from the FEDERAL gov, not STATE govs DUE PROCESS So how can I guarantee that I receive the protections in the Bill of Rights? 14 th Amendment’s Due Process Clause Nor shall any STATE deprive any person of life, liberty, or property without due process of law. amplifies the power of the Bill of Rights

38. B A R O N v. B A L T I M O R E 1 st Amend. 2 nd Amend. 4 th Amend. 5 th Amend. 6 th Amend. 8 th Amend. 9 th Amend. BILL of RIGHTSBILL of RIGHTS Bill of Rights only protects you from the FEDERAL gov, not STATE govs Now I can use the 6 th Amendment to protect myself against the State of Minnesota! 6 th Amend. DUE PROCESS

39. B A R O N v. B A L T I M O R E 1 st Amend. 2 nd Amend. 4 th Amend. 5 th Amend. 6 th Amend. 8 th Amend. 9 th Amend. BILL of RIGHTSBILL of RIGHTS Bill of Rights only protects you from the FEDERAL gov, not STATE govs 6 th Amend. 1 st Amend. DUE PROCESS

40. B A R O N v. B A L T I M O R E 2 nd Amend. 4 th Amend. 5 th Amend. 8 th Amend. 9 th Amend. 1 st Amend. 2 nd Amend. 4 th Amend. 5 th Amend. 6 th Amend. 8 th Amend. 9 th Amend. BILL of RIGHTSBILL of RIGHTS Bill of Rights only protects you from the FEDERAL gov, not STATE govs 6 th Amend. 1 st Amend. DUE PROCESS Through SELECTIVE INCORPORATION Through SELECTIVE INCORPORATION on a case by case basis, Through SELECTIVE INCORPORATION on a case by case basis, over time, Through SELECTIVE INCORPORATION on a case by case basis, over time, I am protected by nearly the entire BOR Through SELECTIVE INCORPORATION on a case by case basis, over time, I am protected by nearly the entire BOR against actions of my STATE government.

41. Mapp v. Ohio (1961) Dollree Mapp’s Porn Case  Nationalized the Exclusionary Rule  “Fruit from a poisonous tree is poisonous”  Overturned Wolf v. Colorado (1949)

42. 4 th Amendment @ School Probable Cause Reasonable Suspicion  New Jersey v. TLO (1985)  Safford Unified School District v. Redding (2009)

43. Equal Access Scenario #1  Students at Central Christian High School want to start a Buddhism Meditation Group after school.  Does the school have to grant them a right to meet?

44. Equal Access Scenario #2  You are a student at a public high school that gets federal financial assistance and you want to have a Bible Study Club meet before school. Presently, the school only has a French Club that meets after school.  Does the school have to allow the club?

45. Equal Access Scenario #3  You are a student at a public high school with a limited open forum; you wish to hold your Bible Club meetings on Sunday at the school.  Does the school have to allow the club?

46. Equal Access Scenario #4  You are a student at a public high school with a limited open forum; you want to invite your imam to lead prayers during Ramadan.  Do students have a right to invite the imam to meet with their “Students of Faith” club?

47. Equal Access Scenario #5  You are a student at a public high school with a limited open forum; you want to hold Neo-Nazi meetings at the school.  Does the school have to allow the club?

48. Privacy

49. Right to Privacy Griswold v. CT (1965) Overturned an 1879 Connecticut law that made the contraceptives illegal to married couples Even though “privacy” doesn’t appear in the con Specific guarantees in the 1 st, 3 rd, 4 th, and 5 th Amendments create a zone of privacy that is protected by the 9 th Amendment

50. Abortion & Privacy Roe v. Wade (1973)  Blackmun wrote in a 7-2 decision that a right to privacy extended to the right to terminate a pregnancy. All states had to respect it because of the Due Process clause  1 st trimester abortions are allowed  2 nd trimester abortions can be restricted, but not prohibited by the state  3 rd trimester abortions can be regulated or prohibit abortions except when medical judgment determines that an abortion is necessary to save a woman’s life

51. Abortion & Privacy  Planned Parenthood v. Casey (1992)  Roe not overturned, but new limits were allowed as long as they didn’t pose an “undue burden”  Recently unsealed records show that Roe was going to be overturned until Kennedy changed sides at the last moment  2000 the SCOTUS struck down a NE law that banned “partial-birth” abortions (without exceptions) b/c it would be a ‘undue burden’

52. Patriot Act  Federal government power to stop terrorist  Examine records and third party records  Search private property without prior notice  Watch international phone calls without warrants  NSA did not use warrants until 2005 and now because of the Foreign Intelligence Surveillance Act the warrants are much broader  Wire Tapping American is a little harder 52

53. Rights of the Accused

54.  Miranda v. Arizona (1966)  Miranda was arrested for robbery but confessed to the rape of an 18-year-old woman.  Miranda was NOT made aware that he could have counsel or the right to not incriminate himself.

55. “I plead the Fifth”  5 th Amendment gives protection against testifying against yourself  Exceptions  If you testify in your behalf you forfeit your right the 5 th  You cannot invoke the 5 th to avoid answering an embarrassing question  You cannot invoke the 5 th to avoid incriminating someone else

56. Civil Rights  Protect the People from the People  “All Men are Created Equal”

57. Racial Equality  Affirmative Action  Not Equal- Just Equal opportunity  Problem: not equal results or rewards  Founders Fathers did not want everyone to actually be equal.  No Guaranteed Rights  14 th Amendment- Equal Protections of the law

58. Affirmative Action: Policies designed to give special attention or compensatory treatment of members of some previously disadvantaged groups

59. Is Affirmative Action the same thing as Quotas?  Quotas require that a certain number or percentage of a disadvantaged group get a job  Some, but not all, Affirmative Action programs use quotas  For example, if it is proven that a police force actively discriminated against hiring minority officers, a quota may be used to correct past discrimination

60. Bakke v. Regents of California at Davis  UC Davis Medical School desired to produce more minority doctors so they set aside 16 (out of 100) places in the entering class for members of disadvantaged groups  Alan Bakke, a white applicant, was repeatedly deferred even though his MCAT scores were substantially higher than most of the minority applicants who were accepted

61. Bakke v. Regents of California at Davis  Bakke sued the University using the 14 th Amendment and claiming that they denied him equal protection – he also claimed the quotas violated the Civil Rights Act of 1964  Bakke said he was eligible for 84 spots while a minority applicant was eligible for all 100 spots  In 1978, the SCOTUS ordered Bakke admitted and said the quota-based admissions policy was discriminatory

62. SCOTUS Equal Protection Clause Standards RaceGender Other (age, wealth, disability, etc.) Inherently suspect - almost always the classification is unconstitutional. Intermediate standard - probably unconstitutional. “Somewhere between” If a classification is “reasonable” it will be found constitutional. For example, a state law that mandated that people of color were not allowed to serve in the National Guard would be found unconstitutional because it is “inherently suspect” to not allow people of color to serve. However, a law that prohibited people who were blind from serving would be found “reasonable.”

63. Era’s of Equal Rights  Slavery  Scott V Sandford- Blacks had no power under the white mans government, even blacks that escaped to the North Congress did not have the power to ban slavery  Thirteenth Amendment Civil War

64. Era of Reconstruction  Freedmen’s Bureau- provided assistance to former slaves  1876 Rutherford Hayes  Pull troops out returns to old ways  Jim Crow Laws  Plessy v. Fergusan  Rail Cart 7/8 White- Separate But Equal was ok

65. Era of Civil Rights  NAACP- Linda Brown 1954  Brown v. the Board of Education  Slowly Integration is put into play  Does it really matter if the law says that segregation is not allowed?  De Jure- by Law- we can not openly with the law allow segregation  De Facto- in Reality- look at communities, economic and social make up Still Segregated  Media 1960-70 changes the minds by making sure the U.S. has a Conscience

66. Voting Rights  Civil Rights Act of 1964  Racial discrimination against any group in businesses and in Jobs EEOC- Equal Employment Opportunity Commission  Slowly eliminate all Segregation  Voting Rights Act of 1965  Government sent to district to make sure African American can Vote

67. Right to Suffrage  15 th Amendment- Race, color, previous condition  What about Registration? Literacy Test Grand Father Clause Poll Taxes White Primary Unconstitutional in 1944- Smith v. Allwright  24 th Amendment  Good Bye to Poll Taxes

68. Gerrymandering  Miller v. Johnson- 1995  UnConst- draw lines for the Minority

69. Women  19 th Amendment- 1920 Allows women to vote  Before  Coverture- no identity from their husband  Rule of Thumb  Can only change through the right to vote

70. Women Rights  19 th Amendment- 1920’s  Era 1920-60’s- bread bakers of America  Protectionism compared to equal rights  Equal Rights Amendment (ERA) try finally passed in 1972- cannot be denied rights based on sex 70

71. Women Part II  Feminist Wave  National Organization of Women and National Political Caucus organized  Reed v. Reed- 1971-gender classification violated equal protection clause of the 14 th amendment Medium scrutiny- “exceedingly persuasive justification” to classify 71

72. Women Making Strides  Traditional Roles  Civil Rights Act of 1964- banned gender discrimination in employment  Pregnancy Discrimination Act of 1978- cant exclude pregnancy and childbirth from their sick leave  Education- Title IX- 1972 forbids gender discrimination in federally subsidized educational programs (Also athletics)  Military Schools cannot keep women out 72

73. Women and more women  Wages  Comparable Worth- females are paid less thene males  Military  Opened Service in 1975  Now serve in Combat Roles (Special Forces) 73

74. Harassment  1964 Civil Rights Act- cannot create a hostile or abusive work environment  Title VII- catches harassment before severe psychological injury  All work places are required to have a system of reporting harassment- Penn State Police v. Suders  School districts- if knowledgeable of harassment makes them liable to be sued. 74

75. Civil Right Groups  Elderly-Social security 1930’s, not enough  Age Discrimination –jobs, education, etc..  Disabilities-  Rehabilitation Act of 1973 – added to be protected by discrimination  American Disabilities Act of 1990- ADA Create reasonable Accommodations in public areas  Gay and Lesbian Rights- DOMA  Don’t ask Don’t Tell  2003 Bowers v. Hardwick- antisodomy laws were against the right to privacy 75